Ulhas Diwakar Joshi vs The State Of Maharashtra, The ...
2002 Latest Caselaw 42 Bom

JUDGMENT

1. The petitioner Ulhas Diwakar Joshi, Inspector General of Police, Maharashtra State, C.I.D., has filed this writ petition against the respondents including respondent No.4 - Sudhakar Shankarrao Suradkar, Special Inspector General of Police, Aurangabad Range, seeking to quash and set aside the order dated 20.9.2001 passed by the Judicial Magistrate First Class, Thane,in Criminal Case No. 250 of 2001 and also has sought quashing and setting aside the proceeding itself initiated by the respondent No.4 - Suradkar against the petitioner for alleging offence under Sec. 3(1)(viii) of the SC & ST (Prevention of Atrocities) Act, 1989 (hereinafter called as the said Special Act), vide Criminal Case No. 250 of 2001 pending in the Court of Civil Judge Junior Division and J.M.F.C., Thane. I have heard Shri P.K. Dhakephalkar for the petitioner, Mr. Suradkar - respondent No.4 in person as well as the learned A.P.P. for the respondents 1 to 3.

2. Facts involved in the case, in brief, as thus -

In order to appreciate the dispute involved in proper perspective, it would be just and proper on my part to peep into the facts and circumstances which form the back ground of the controversy. One Asif Patel in Kashimira Police Station in April, 1991 filed cross-complaint against one Hitendra Thakur and both cross-complaints were registered at C.R. Nos. 43 & 44 of 1991. When these offences were registered and provisions of TADA were applied to said Asif Patel and other co-accused in C.R. No.43 of 1991, several writ petitions came to be filed before the High Court requesting for quashing and setting aside the prosecution under the provisions of TADA. In one of the earlier writ petitions (Writ Petition Nos. 598 of 1999 and 731 of 1991) decided by the Division Bench of this Court and which were filed by some of the co-accused other than said Asif Patel, the petition was allowed and the prosecution under TADA against the petitioner in that petition was quashed. However, subsequently, two other writ petitions (886 of 1991 and 237 of 1992) came to be decided on 26.8.1991 and 26.2.1992, in which other gang members of said Asif Patel had challenged the invocation of the provisions of TADA came to be decided on merits after referring the earlier order passed by the Division Bench of this Court. These judgments dismissing the petitions were not further challenged and they became final.

The present petitioner took over charge of D.I.G., Konkan Range, in December, 1991 and in his official capacity accorded sanction under Sec.20-A of TADA for filing a chargesheet in C.R. No. 43 of 1991 against said Asif Patel and other co-accused in the trial. On this back ground, the present respondent No.4, who, by the month of June, 1993, had taken over as the Dy. Inspector General of Police, filed affidavit before the Designated Court on 25.11.1993 in Special Case No. 5 of 1991 filed by Asif stating that the provisions of TADA could not be invoked against Asif and other accused and the trial be transferred to the regular Court of Sessions under Section 18 of TADA. Thereafter, the present petitioner on 24th February, 1994 filed an application (Cri. Misc. Application No. 20 of 1994) in Special Case No. 5 of 1991 stating therein and drawing the attention of the Designated Court that, in the affidavit of present respondent No.4 Suradkar, he has suppressed a very material and significant fact of the two writ petitions being dismissed by the High Court raising a challenge to the applicability of provisions of TADA in respect of the case registered against Asif and other co-accused. The Designated Court by order dated 30.8.1996 rejected that application of the present petitioner observing that the applicant was absence since long, however, the matter was pertaining to the contempt of Court and, therefore, it was being decided on merits of the case itself.

Thereafter, the present respondent No.4 filed F.I.R.dated 14.9.1996 against the present petitioner alleging that he had instituted false, vexatious and malicious illegal proceeding before the TADA Court, Pune by initiating Cri. Misc. Application No. 20 of 1994 and since it was rejected by the Designated Judge of the TADA Court, the petitioner had committed the offence punishable under Section 3(1)(viii) of the said Special Act. On the basis of the said complaint, C.R.No. 322 of 1996 was registered and investigation was conducted under the relevant law and after due investigation, "A" Summary was recommended, however, it was challenged in the Court of law and by order dated 16.10.1998, recommendation regarding "A" Summary Report submitted by the Deccan Gympkhana Police Station, C.R.No. 322 of 1996 was rejected and report was returned for further investigation and to take proper steps according to law.

Thereupon, the matter was re-investigated and investigating machinery came to the conclusion that it was a fit case to recommend "C" Summary and made request dated 22.9.1999 to the Court of law. In the said proceeding, the learned J.M.F.C., (A.C.) Court, Pune, heard the parties on merits and came to the conclusion that recommendation for "C" Summary was justified in law and accordingly the report was acceptedand "C" Summary was sanctioned by order dated 10th April, 2001. It may be noted, at this juncture, that the present respondent No.4 filed Criminal Writ Petition No. 743 of 2001 challenging the said order passed by the J.M.F.C., (A.C.) Court, Pune, which is also being adjudicated alongwith this writ petition.

3. On the back ground of these factual matrix including the fact that J.M.F.C. (A.C.) Court, Pune, accepted the "C" Summary in Court in the complaint filed by the present respondent No.3. By order dated 10.4.2001, the present respondent No.3 filed a complaint against the present petitioner under the provisions of Section 3(1)(viii) of the said Special Act on 18.9.2001. Both these dates assume some importance to which reference would be made at later stage.

On 15.8.1994, when the petitioner found that on the basis of affidavit made by the respondent No.4 - Suradkar, provisions of TADA were withdrawn in the case of Asif, a complaint was drafted and presented at Kashimira Police Station submitting that, while filing the affidavit before the Designated Court, it was the duty of the respondent No.4 to give full information about the orders passed by the High Court in subsequent two writ petitions holding that the TADA was applicable to the case of Asif Patel and others and thereby he suppressed the said evidence with said intention of screening the accused in the Special Case No. 5 of 1992 from legal punishment under TADA Act and Mr. Suradkar - the respondent No.4 intentionally screening provisions of legal process by suppressing the facts of judgment of this Court in Writ Petition Nos. 886 and 237 of 1991 respectively. According to the petitioner, Mr. Suradkar, in his affidavit referred to only two earlier writ petitions and deliberately suppressed the reference to two later writ petitions and, therefore, Mr. Suradkar had committed offence punishable under Section 193, 201, 203, 213 and 221 of the IPC. This draft of complaint was presented to the police station official of Kashimira Police Station, Thane, who, however, did not register the offence but made endorsement in the police station diary to the effect that the question of registration of the offence would be decided only after consultation with superior officers as well as Sr. Police Prosecutor. The said complaint was thereafter not pursued by the petitioner or anybody and it remained merely as a draft complaint at that police station. Nothing happened thereafter for more than 7 years when suddenly present respondent No.4 moved Sessions Court, Thane and filed complaint under the provisions of the said Special Act against the petitioner, dated 18.9.2001, alleging that the petitioner had instituted false, malicious and vexatious criminal complaint or legal proceeding against him i.e. Mr. Suradkar - the respondent No.4, who belong to the Schedule Caste and, therefore, requested to take cognizance of the offence of the provisions of said Special Act. The record further shows that, on 18.9.2001 the learned Chief Judicial Magistrate, Thane, received a complaint and passed following order :- "Complainant present with his advocate. Put up for verification on 19.9.2001. Case to be made over to II J.M.F.C., Thane. Sd/-."

Thereafter, the complaint was transferred to the II J.M.F.C., Thane, who on 19.9.2001 passed following order :-

"Received. The complainant shall satisfied the Court how the provisions of the S.C. & S.T. (Prevention of Atrocities) Act are attracted.

Sd/-

II J.M.F.C., Thane."

Suddenly, thereafter on next date, the learned II J.M.F.C. appears to have changed his mind and passed order dated 20.9.2001 as follows :-

"1. After hearing the complainant and perusal of the complaint there disclosure of cognizable offence, Honble Chief Judicial Magistrate, Thane vide his first order dated 18.09.2001 ordered that the complaint put up for verification on 19.09.2001 and made over this case to this Court. In my considered opinion, he has not taken the cognizance of the alleged offence but it is just a casual order.

2. Taking into consideration the fact that this complaint discloses the cognizable offence, I direct the Incharge Police Inspector of Kashimira Police Station to register the case treating this complaint as F.I.R. He is also directed to see that the investigation of offence shall be made by the designated police officer and, as provided in the Special Statute i.e. the SC & ST (Prevention of Atrocities) Act, 1989.

3. The complainant shall supply the copy of the complaint duly signed and copy of all materials enclosed with the complaint sending the same to the concern police station within 7 days from the date of this order. On supply, the same shall be sent to the police station immediately for investigation in view of Section 156(3) of Cr.P.C."

It may also be noted that, part of the last sentence of the order appears to be added subsequently mentioning the provisions of Cr.P.C.

4. On this factual matrix, Mr. Dhakephalkar, the learned counsel for the petitioner, made two-fold submissions, firstly, according to him, the complaint of respondent No.4 before J.M.F.C. Thane is misconceived because it is not in confirmity with the relevant provisions of the said Special Act itself. Secondly, it was urged that the learned J.M.F.C., while dealing with the complaint in the aforesaid manner has violated the procedural as well as substantive law and, therefore, the order passed by the J.M.F.C. is liable to be quashed forthwith. Lets now examine, therefore, if the complaint lodged by the respondent No.4 makes out a prima facie case within the four corners of the alleged provisions of the said Act.

The provisions of Sec. 3(1)(viii) of the said Special Act stipulates that, whoever not being a member of S.C. or S.T. institutes the false, malicious or vexatious suit or criminal or other legal proceedings against a member of a Scheduled Caster or a Scheduled Tribe, shall be punishyable with imprisonment, etc. The operative clause in the said provision is (i) that some suit, complaint or legal proceeding must be instituted; and (ii) said proceeding or complaint should be either false or malicious or vexatious. In the present case before us, there is no dispute that the respondent No.4 belongs to S.C. and petitioner is not a member of S.C. or S.T. However, it is pertinent to see if there was any institution of any legal proceeding or complaint at all in this case. It is an evident position that draft of complaint dated 15.8.1994 vide Exh."D" was prepared by the petitioner and was handed over to the police station officer at Kashimiar Police Station, however, the endorsement made by the concerned police officer in the police station diary of Kashimira Police Station tells a different story. He has clearly made a note of the fact that the petitioner had approached him to file a criminal complaint and he perused the same and realized that it was against respondent No.4. Therefore, he informed the petitioner that it was a legally complicated case and he was required to consult the superior officers. He further noted that he did not register the offence and made endorsement to the effect that further steps would be taken after consultation with the superiors and senior police prosecutor. In the meantime, on insistance of the petitioner, he gave the Crime Register No. 71 of 1994 to him alongwith blank format of the F.I.R. register whereupon the petitioner signed it. Further, it is also not in dispute that nothing further took place and neither the petitioner pursued the matter nor the police took any action in that regard even to register the offence leaving aside any enquiry or investigation therein. Therefore, there is absolutely no doubt that there was no "institution" of any complaint or legal proceeding at the hands of the petitioner against the respondent No.4 in this case and, therefore, I have no hesitation to hold that the very basic pre-requisite of the provisions of Sec. 3(1)(viii) of the said Special Act is not fulfilled and thus the act of the petitioner in filing the draft of the complaint would not attract the said provisions of the said Special Act.

5. Then comes the question, whether the contents of the complaint sought to be filed by the petitioner were false, malicious or vexatious. In the said complaint, the petitioner had categorically averred that, before the Designated Court it was the duty of Mr. Suradkar to give full information about the order passed by the High Court in the subsequent two writ petitions holding that the TADA was applicable to the case of Mr. Asif Patel and others and thereby suppressed the said evidence with the intention of screening accused in the Special Case No. 5 of 1992 from legal punishment under the TADA Act. Now, it is evident position that, in Writ Petition Nos. 5 of 1998 and 731 of 1991, the Division Bench of this Court had allowed the petitions and held that the prosecution under TADA against those petitioners were quashed, however, subsequently, in Writ Petition Nos. 886 of 1991 and 237 of 1992 which were decided on 26.8.1991 and 26.2.1992, the Division Bench of this Court dismissed the writ petitions holding that the provisions of TADA were very much applicable. The documents in that regard further show that, in earlier two writ petitions, of which the reference was made by Mr. Suradkar in his affidavit, the decision was made on the basis of concession given by the learned prosecutor before the Division Bench of this Court, which fact is also mentioned in the order of later writ petitions and it was not mentioned by Mr. Suradkar in his affidavit. Then, a fact that he did not make mention of later two writ petitions in his affidavit before the TADA Court is sought to be explained by Mr. Suradkar with a lame excuse that the said affidavit was brief and it was drafted by the prosecutor and, therefore, the fact of later two writ petitions and orders therein, was not mentioned in the affidavit. In my view, this excuse is totally devoid of any merits especially when it comes from a top police officer like Inspector General of Police. Therefore, by necessary implication, it must be held that the fact of existence of order of later two writ petitions in the said affidavit was deliberately omitted by Mr. Suradkar in the course of his affidavit.

If this was the position, then draft of complaint sought to be filed by the petitioner cannot be said to be false, malicious or vexatious, as there was some foundation for harbouring the plea that Mr. Suradkar had committed wrong in that regard. In view of this position, it cannot be said tht the said complaint filed by the respondent No.4 Mr. Suradkar attracts the provisions of the said Special Act at all.

6. Coming to the manner in which the learned J.M.F.C. has dealt with the complaint of Mr. Suradkar, it is to be noted that the act of II J.M.F.C., Thane, was not only irregular but blatantly illegal. When the complaint came to be filed on 18.9.2001, Chief Judicial Magistrate had clearly issued directions to put up the matter for verification 19.9.2001 and then it was transferred to the II J.M.F.C., Thane. Thereafter, II J.M.F.C. on 19.9.2001 thought it fit to issue direction to the complainant that he should satisfy the Court how the provisions of S.C. & S.T. (Prevention of Atrocities) Act are attracted. It was on 19.9.2001. Then suddenly on 20.9.2001, II J.M.F.C. Thane, mysteriously changed his mind and observed that, in his considered opinion the Chief Judicial Magistrate, while passing order of recording of verification, has not taken the cognizance of the alleged offence but it is "just a casual order". One fails to understand what the learned J.M.F.C. wants to express by these words. Also it is to be noted that Mr. Suradkar had not annexed sufficient documents for perusal to satisfy the J.M.F.C. in this regard. Moreover, it is needless to mention that, when the Chief Judicial Magistrate had directed to put up the matter for verification and thereafter the II J.M.F.C. himself had come to the conclusion that it was necessary for the complainant to satisfy the Court as to how the provision of S.C. & S.T. (Prevention of Atrocities) Act was attracted, then it was the duty of the said Magistrate to record the reasons as to why he omitted the record verification of the complainant as well as give the details as to how he suddenly was satisfied regarding applicability of the provisions of the said Special Act while directing the Police Officer to investigate the matter. Bt that as it may. The fact remains that the order of the II J.M.F.C. Thane is illegal and, therefore, liable to be quashed. Further, as we have seen earlier, the complaint of respondent No.4 cannot make out even a prima facie case to attract the provisions of Section 3(1)(viii) of the said Special Act.

7. Mr. Dhakephalkar, the learned counsel for the petitioner submitted that the said complaint sought to be filed by the respondent No.4 also suffers from inordinate delay because, admittedly, the alleged cause of action taken place on 15.8.1994 when draft of complaint was sought to be lodged by the petitioner, whereas the respondent No.4 Mr. Suradkars complaint against that is filed on 18.9.2001 i.e. more than 7 years after the cause of action. It was urged on behalf of the petitioner that the complaint was filed only to harass the petitioner with a convenient tool of the said Special Act. The dates involved in the entire history of dispute lend support to this argument. Mr. Suradkar chose to keep quiet with regard to the draft of complaint sought to be filed by the petitioner in August, 1994 for several years and only became alive to the alleged atrocity when the J.M.F.C. (A.C.) Court, Pune, accepted the recommendation of "C" Summary Report in his complaint a few months earlier. The timing of Mr. Suradkars present complaint, therefore, is too conspicuous to suggest that Mr. Suradkar does not wish to leave the petitioner alone, especially when, as submitted on behalf of the petitioner, he is on the verge of promotion in his service cadre.

8. In the result, the petition is hereby allowed in terms of prayer clauses (a) & (b). The order dated 20.9.2001 passed by the II Jt. Civil Judge, Jr. Division & J.M.F.C., Thane in Criminal Case No. 250 of 2001 stands quashed and set aside.